Ramdeen And Others vs Mam Chand

Sharad Kumar Sharma, J

The respondent is plaintiff of Suit No.110 of 1982, Mam Chand Vs. Zarib Ahmed and others, which he had instituted as against the defendants of the said suit. The suit, in question, which was filed on 16th August, 1982, in relation to the property, in dispute, i.e. khasra No. 76, was having an area of 3 bighas and 16 biswas, the plaintiff has sought a decree in the nature of injunction and eviction of the occupants of the property, in question. The said suit was dismissed by the Trial Court by the judgment dated 5th September, 1985. As against the judgment of the Trial Court, the plaintiff/respondent, herein, had preferred an Appeal No. 65 of 1985, which was considered by the Appellate Court and, consequently, the appeal was allowed by the appellate Court vide its judgment dated 22nd February, 1987, and the suit for injunction as well as for eviction which was decreed in favour of the plaintiff respondent. As against the judgment of the First Appellate Court, the judgment debtor had preferred Second Appeal before this Court, being Second Appeal No. 595 of 2001, which was the new number assigned to it after its transfer from Allahabad High Court under the Reorganization Act, where it had an old Number as Second Appeal No. 1718 of 1983, Zarib Ahmed Vs. Mam Chand. The Second Appeal, in question, when it was considered by the coordinate Bench of this Court, had dismissed the same by the judgment dated 9th July, 2009, and consequent thereto, had affirmed the judgment of the First Appellate Court as rendered on 27th February, 1987.

The judgment of the second Appellate Court dated 9th July, 2009, had attained its finality, because the same has not been challenged or made as subject matter of controversy, in question, before any superior Court thereafter. Ultimately, on the culmination of the proceedings by the judgment of the Second Appellate Court and which resulted into the consequential decreeing of the Suit No. 110 of 1982, Mam Chand Vs. Zarib Ahmed and others, the decree holder had put the decree in execution, which was registered and numbered as Execution Case No. 9 of 2006, Mam Chand Vs. Jarib Ahmed and others .

Ultimately, during the execution proceedings, the decree holder had filed an application under Order 21 Rule 97 CPC to ensure the enforcement of the decree on account of issuance of the parwana dakhal, which was issued under Order 21 Rule 11 of the C.P.C.

The appellants before this Court, they contend that they were the actual occupants of the property, in question, by virtue of an agreement for sale, which was said to have been executed by the decree holder in their favour and it is argued by the appellant that in pursuance to the said agreement for sale as executed in their favour, they were placed in possession over the land, in question, and they have raised their respective constructions on the land, in dispute.

The sole basis of the claim of the present appellants, who admittedly are not parties to the proceedings before the Court below and upto the appellate stage, but in the Second Appeal, they had claimed their rights based on the an unregistered agreement for sale said to have been executed in their favour by the decree holder on 12th August, 1998.

It is too surprising that how can an unregistered agreement for sale can create a right or title in favour of the present appellants to desist the decree in favour of the decree holder, which has been affirmed upto the Second Appellate Court. In case, if at all the appellants contend that they had acquired any of their rights by virtue of being placed in possession in 1998 under the strength of the unregistered agreement for sale dated 12th August, 1998, they ought to have a recourse, which is permissible under law for the enforcement of their rights before the competent Court, if at all, it was tenable in accordance with law. But, as far as the consideration of the objection under Order 21 Rule 97 to be read with Order 21 Rule 11 and Order 21 Rule 103 of the CPC, the decree holder, who has placed the decree in execution by filing an Execution Case No. 9 of 2006, which was objected by the judgment debtor by the objection, paper No. 32 Ga, and on the death of the judgment debtor, the same was being substituted by writing word "deceased" in front of the judgment debtor. It would not give any right to the appellant to resist the decree, more particularly when they are not party nor have any legal sustainable rights. Order 21 Rule 97, Order 21 Rule 11 and Order 21 Rule 103 of the CPC read as under :-

"97. Resistance or obstruction to possession of immovable property. - (1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person obtain-ing possession of the property, he may make an application to the court complaining of such resistance or obstruction.

(2) Where any application is made under sub-rule (1), the court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.]

Oral application. -(1) Where a decree is for the payment of money the Court may, on the oral application of the decree-holder at the time of the passing of the decree, order immediate execution thereof by the arrest of the judgment-debtor, prior to the preparation of a warrant if he is within the precincts of the Court.

(2) Written application--Save as otherwise provided by sub-rule (1), every application for the execution of a decree shall be in writing, signed and verified by the applicant or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case, and shall contain in a tabular form the following particulars, namely :--

(a) the number of the suit;

(b) the names of the parties;

(c) the date of the decree;

(d) whether any, appeal has been preferred from the decree ;

(e) whether any, and (if any) what, payment or other adjustment of the matter in controversy has been made between the parties subsequently to the decree;

(f) whether any, and (if any) what, previous applications have been made for the execution of the decree, the dates of such applications and their results ;

(g) the amount with interest (if any) due upon the decree, or other relief granted thereby, together with particulars of any cross-decree, whether passed before or after the date of the decree sought to be executed;

(h) the amount of the costs (if any) awarded ;

(i) the name of the person against whom execution of the decree is sought; and

(j) the mode in which the assistance of the Court is required whether-

(i) by the delivery of any property specifically decreed;

(ii) by the attachment, or by the attachment and sale, or by the sale without attachment, of any property;]

(iii) by the arrest and detention in prison of any person;

(iv) by the appointment of a receiver;

(v) otherwise, as the nature of the relief granted may require.

(3) The Court to which an application is made under sub-rule (2) may, require the applicant to produce a certified copy of the decree.

Orders to be treated as decrees. - Where any application has been adjudicated upon under rule 98 or rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree.]"

By the impugned order under challenge, the contention of the appellants before this Court is that since they have been placed in possession under the strength of an unregistered agreement for sale dated 12th August, 1998, which is a factum, which is yet to be determined by the competent Court under any independent proceedings to be drawn by them but so far as the interpretation which has been given to Article 129 of the Limitation Act, which reads as under :-

"129. For possession after removing --- do-- The date of resistance or obstruction to delivery of resistance or possession of immovable property obstruction." decreed or sold in execution of a decree.

The interpretation which could be given to Article 129 is the obstructions which could be made in relation to the delivery of possession , in pursuance to the decree executed could only be by the person who validly holds title or right to occupy the property, even, if it is presumed that Article 129, if at all, has any play, it will come into play, it would to be only available to be enforced as against the judgment debtor or the parties who were their before the Appellate Court from which the present appeal has arisen, and defence under Article 129 would not be available to the appellants, who were not party in the proceedings before the Court below.

Since the present appellants are not parties to the principal proceedings upto the second Appellate stage, which has attained finality, and it should be borne in mind that right of the present appellants has only accrued in 1998, i.e. after the judgment rendered by the First Appellate Court and before its affirmation by the Second Appellate Court on 9th July, 2009, the defence of Article 129 will not be available to the person who is not a party to the proceedings and he cannot resist the enforcement of a decree.

In that view of the matter as far as the argument extended by the learned counsel for the appellants is not acceptable by this Court. The Appeal lacks merit as it involves no substantial questions of law to be answered by this Court. Consequently, the Appeal fails and is accordingly dismissed.

However, there would be no order as to costs.